CHICAGO (CN) - Two Americans who worked for a private Iraqi security firm can sue former Defense Secretary Donald Rumsfeld for damages for the torture they say they suffered at the hands of U.S. forces, a divided 7th Circuit panel ruled.
Donald Vance and Nathan Ertel worked for Shield Group Security, a private security firm operating in the Red Zone outside of Baghdad. Suspecting that their employer was involved in illegal arms trading, bribery, weapons stockpiling and other illegal activity, the pair began reporting alleged wrongdoings to the U.S. government.
In April 2006, Shield officials became suspicious of Vance and Ertel, confiscating their credentials and effectively trapping them in the firm's compound. U.S. forces came to the compound and took the pair the U.S. Embassy.
But Vance and Ertel say their rescue soon turned into a nightmare. According to their complaint, U.S. officials transported them to Camp Cropper, where they were kept in solitary confinement and subjected to physical and psychological torture with no ability to contact their families or lawyers. Vance was allegedly kept in solitary confinement for three months, and Ertel for six weeks.
"If the plaintiffs' allegations are true, two young American civilians were trying to do the right thing by becoming whistleblowers to the U.S. government, but found themselves detained in prison and tortured by their own government, without notice to their families and with no sign of when the harsh physical and psychological abuse would end," Judge David Hamilton summarized.
After being returned the United States without being charged with a crime, Vance and Ertel sued Rumsfeld, claiming that he personally approved the interrogation and torture techniques they had endured.
U.S. District Judge Wayne Andersen denied Rumsfeld's motion to dismiss the suit, finding that the plaintiffs' claims, if true, "adequately alleged Secretary Rumsfeld's personal responsibility for their treatment."
The 7th Circuit upheld the bulk of that decision Monday.
The court found that a Bivens remedy, which allows personal lawsuits against government officials who violate clearly established constitutional rights, should be available to U.S. citizens in a war zone, "at least for claims of torture or worse."
"We conclude that the plaintiffs have sufficiently alleged Secretary Rumsfeld's personal responsibility," Hamilton wrote in an 82-page majority opinion. "While it may be unusual that such a high-level official would be personally responsible for the treatment of detainees, here we are addressing an unusual situation where issues concerning harsh interrogation techniques and detention policies were decided, at least as the plaintiffs have pled, at the highest levels of the federal government."
After Congress limited allowable interrogation techniques to those authorized in the Army Field Manual through the Detainee Treatment Act, Rumsfeld added 10 classified pages describing cruel, inhuman and degrading techniques, Vance and Ertel claimed
Rumsfeld, represented by Obama administration lawyers, argued that judicial review of military actions was not appropriate. The federal appeals court disagreed.
"Recognizing the plaintiffs' claims for such grave - and, we trust, such rare - constitutional wrongs by military officials, in a lawsuit to be heard well after the fact, should not impinge inappropriately on military decision-making," Hamilton wrote.
"Courts reviewing claims of torture in violation of statues such as the Detainee Treatment Act or in violation of the Fifth Amendment do not endanger the separation of powers, but instead reinforce the complementary roles played by the three branches of our government."